tv Ziglar v. Abbasi Oral Argument CSPAN June 21, 2017 4:13pm-5:14pm EDT
from the george w. bush administration for civil rights violations without authorization from congress. the court, however, did decide that a lawsuit could move forward against the warden of a brooklyn detention center where detainees were allegedly subjected to harsh conditions including sleep deprivation and strip searches. justice sonia sotomayor and elena kagan recused themselves of this case and justice gorsuch was not on the supreme court at the time the oral argument was heard. it's just under an hour. >> you'll hear argument next this morning in case 151358, zeigler versus, basi. >> mr. chief justice and may it please the court, the plaintiffs seek to hold the same defendants liable for the same actions arising in the same extraordinary circumstances in the wake of the september 11th terrorist attacks.
all of the judges below concluded that plaintiff s' core mory is by eight ball and they had the merger theer of liability, promising liability on the alleged decision of attorney general ashcroft to merge the new york list of detainees which had not been fully vetted by the ins list and continue to hold until cleared policy for detainees on both lists. the liability does not attach here for at least three reasons. first, the bivins remedy should not be extended to national security and immigration policy decisions by senior officials in the wake of the september 11th attacks. in the damage remedy is to be impose side for not congress to do so. >> the list merger theory suffers from the same pleading deficiencies that the court identified in it ball itself. among other thing, there is an alternative and a list merger decision. given the uncertainty about the
status of detainees on the new york list, the list merger was undertaken to avoid the inadvertent or premature release of a dangerous terrorist and third, the defendants here violated no clearly established right. it would not have been clear to every reasonable defendant that merging the lists in the wake of the 9/11 attacks would be unconstitutional rather than risking premature release of a detainee on the new york list. i think the easiest way for this court to resolve this case is through the it ball pleading theory, but given this court a admonition that the existence of the bivins remedy is an antecedent question that the court should request first. let me start there. >> you seem to be assuming that the whole case is about the merging of the new york list with the other list, but i thought that this was -- this case was identified as a prison conditions case. >> so, your honor, that broader theory was raised below, and it
was rejected by every judge to the district court and the panel majority, and it is also, i think, not within the scope of the question presented, but even -- and i think the reason that it was barred below is because it's squarely foreclosed by it ball both on the due process claim and the equal process claim. on the substantive due process claim is we have a facially valid constitutional policy to -- that could be applied to individuals with individualized suspicion of terrorism and if you look at the allegations of the complaint and these are paragraph 64 and 65 of the complaint, all that is allege side that ashkroft and mueller -- this is on page 274a of the appendix to the petition and this is paragraph 61 that ashcroft and mueller met with a small group of officials to exert maximum pressure the individuals arrested and in
paragraph 65 on the next page, that the punitive conditions in which the class members were placed were the direct result of the strategy. there is no allegation that ashcroft and mueller or zigler created the punitive conditions or that they required the punitive conditions. they had the right as the second circuit itself held and the district court held to presume that the policy would be implemented lawfully. the only real theory that survives, i think, your honor is the list merger theory and that theory fails. i think it's critical to happened in that context how the case, how the situation looked to the attorney general -- to attorney general ashcroft who was alleged to be the decisionmaker. i'll come back to the failure of the complaint to allege that he was the decision maker, but even taking that, what he faced was a new york list which involved aliens, all of whom were out of status and had been picked up in the course of the bomb investigation. he knew that not all of those aliens had had individualized
suspicion determinations, but that some may have had ties and nexis to terrorism and he knew the confinement would be lawful. it was want disputed that those would be lawful with those with individualized suspicion. faced with that decision, the second circuit found the list merger decision could be by punitive intent or discriminatory intent, but there is an obvious alternative explanation for the decision that attorney general ashcroft would have faced in deciding the mergers to list s that you couldn't tell who was and who was not -- who did any wd who d not have a potential link to terrorism and therefore a decision to hold everyone until cleared, to apply the hold until cleared policy is best explained not by invidious intent, but the desire to avoid the premature and inadvertent release of terrorists. >> that went on for several months. eight months.
>> i think the list merger decision went on -- >> yes, but weren't they held for eight months? >> they were held longer and there was no -- >> i can understand after a bomb attack. i can understand after a bomb attack and 3,000 people are killed. i can understand that the first reaction of the law enforcement authorities is pick up anybody who might think is connected and we'll worry about the rest of it later. now, eight months? what they do allege is that ash rost and mueller had not developed any reliable evidence, paragraph 67, tying their evidence to terrorism and mueller, it says, ordered that they be kept in ins custody and including the restricted conditions and even after officers reported and they don't say reported to whom and that is
a point in your favor, but that there was no reason to suspect them of terrorism, but i think fairly read, they're saying they -- okay. they authorized it. they knew that some of these people had no information against them, but the answer is pick up anybody who might have a connection and then just keep them there? i mean, that's worrying me a lot and why doesn't that at least state an allegation? suppose it had been five years? suppose it had been ten years? we all know the problem with that, and if you know it, i can see it for a day, two days, five years, eight months? why isn't that an allegation that at least you have to deal with on discovery and so forth? >> because i think the core of the allegation against ashcroft and muler is not that they prolonged the detention. the policy that they adopted in the list merger decision was
facially constitutional because it -- it adequately dealt with the dilemma that they face? >> how long after 9/11 did they adopt that policy? >> i was i believe it was in the months before 9/11. >> how many months? >> i apologize -- >> is it more like eight months? >> no, your honor, i believe it was in october -- after the -- in october, after the -- after the -- after the attacks and so we're not talking. this was not something that was done eight months down the road. this was something that was done as officials are trying to sort through how to respond to the very difficult situation that if you accept that the attorney general made the decision that he found himself in. he had a list that was not fully vetteded and some of those people may have had ties to terrorism and some of them may well not have, and what in that situation, application of the
hold until cleared policy, take a breath. let's figure out what's going on rather than releasing everyone is -- was not only doesn't raise a discriminatory inference, but it does not violate any clearly established right to have done that. >> what about the -- what about the -- it's one thing as was prior pointed out to say that you initially hold these people, but you know from day one that many of them have nothing to do with terrorists and yet you allow what might have been justified in october to persist for months and months when these people are being held in the worst possible conditions of confinement. >> your honor, they are being held in restrictive of confinement, but those conditions are lawful as to folks with individualized suspicion. now the -- there is the core of
the claim that the second circuit saw against attorney general ashcroft was the decision to submit the individuals to the restrictive conditions in the first place, and what i would say to that is it attempts to impose a 20/20 hindsight on the attorney general and director mueller and zigler who are involved as having, quote, condoned the policy that just doesn't exist. the plaintiffs say there were no allegations of terrorism ties against us, but of course, the attorney general didn't know that at the time. what he had was a list that had some with ties and some after and the policy to merge the wells and hold until clear was constitutional, and in some instances it took too long to clear and the oig report suggests that was the case that things did not run as smoothly as they should have. that's not something that's
attributable to attorney general ashcroft, director mueller and to commissioner zigler. >> is the argument you're presenting a bivins argument or a qualified immunity argument? >> your honor, the argument we've been discussing now is the qualified immunity it ball argument and we do know the bivins remedy should not be extended here at all and it would be quite an extension of bivins to apply this to national security and policy decisions and we think all three of those factors work together. with respect to national security, what this court has recognized is national security is committeded to congressional authority that congress is based for appropriate remedy and the reason for that is not only the matter of institutional competence and the risk of overdeterrence in the national security context is a real one and it's one that congress should make, and that's, i think, the core of this court's decision in slappel and chappel
stanley. congress has provided a remedy to challenge policy decisions in the apa, and in addition to that, policy decisions are much more likely to receive attention as this set of policy decisions did from the oig and from congress itself. and so -- >> the apa argument strikes me as somewhat odd. the idea that the people in prison are supposed to say, let's look at the administrative procedures act. what about habeas. is th is that an available remedy for them? >> it is an available remedy, and it was invoked by some and those folks were released and it does because the core of the complaint was you're holding us without bond. we should be essentially deported for the illegal remedies, and i do think the availability of habeas here, and i take your honor's admonition about oddity of the apa here,
but if the apa doesn't apply here is because congress provided it for policies and provided review for some policies and not for all policies and that is the congressional judgment, and that is the core -- >> how could they have access to habeas when they were locked up without access to a lawyer and without access to a telephone? >> your honor, there were individuals who did file habeas petitions and -- and those individuals were largely released before the claims could be adjudicated, but the point here is that the enxtension of bivins would be quite extraordinary to the policy con text and the immigration concerns do raise the exact same concerns as the national security one. >> i suppose that in 1942, was there a president or a secretary
of defense who decided let's take 140,000 people, 60,000, 70,000 citizens and 60,000 non-citizens and lock them up for ten years or five years or four years. you go with habeas, right? at the time, you can understand how in january of 1942 it would be pretty tough for a judge in a district court to start second guessing people, but several years later people had the time to develop the information, they understand what people knew then and they might find that in some of those instances there was no justification whatsoever. i look at the bivins remedy, and say, one, it has a cautionary effect. it doesn't deter were it necessary, and then where a big mistake was made, it has the possibility of compensation later.
that's the whole argument. beware of cutting off bivins, you never know what will happen. >> your honor, i guess i will say a few things to that. first of all, i recognize your honor as not -- no, not at all. i use it as a historic example and i'm not worried about this case. >> it's in the context of the specific investigation. >> even with respect to your honor, i think it points out the problem to extending bivins to the national security policy decisions and to policy decisions in general. it should not be in the national security policy context that this court should be calibrating the deterrence, and overdeterrence in that situation. that is a judgment for congress, and if your honor is serious about compensation and this is the problem with policies, it can't really be the case that the right way to get effective compensation is to put the attorney general, the director of the fbi and the commissioner of the ins personally on the hook for the whole class.
the secretary of the treasury -- >> what's the best authority you have for saying that assuming there is a bivins action, it has to be cut off at the lower level of officials. what authority do we have? >> it's not the highest level of officials, your honor, and it's when there is a broad national policy that the policy decisions is not through bivins. it's ordinarily through an injunctive action if i could reserve the balance of my time. >> thank you, general. mr. lamkin? >> thank you, mr. chief justices and may it please the court, i want to begin with qualified immunity in particular with respect to the official
conditions. this case asked the court to hold the individual jailers are responsible in damages for failing to overturn fbi, terrorism classifications and the confinement conditions they produce. a reasonable jailer could have understood and believed it lawful in the circumstances of this case to do as the bop directed them which is to hold detainees in restricted conditions based on those -- >> who determined the level of restriction? >> this is not a restriction. >> your honor, the honor is that the bop directed that you would use the most restrictive conditions permissible, the specific implementation was left to mr. hasty and sherman, but there is no allegation that there was unconstitutional conduct based on what the difference between the bop directed and what mr. hastings and sherman did. the allegation here is that it was impermissible to reduce the
highly restricted conditions because the fbi didn't actually have information connecting these individuals to terrorism and as he somehow knew that and it was impermissible to impose the conditions on these respondents, but that doesn't make any sense from a plausiblity perspective. mr. hasty and sherman are jailers. they are not trained in determining security classifications or connections to international terrorism. they cannot be held liable for failing to overturn the fbi's determinations. after all, just last week this court held that there's no clearly established law that requires an officer to overturn or second guess the fellow officer's decisions made in particular context. that should go double when asked by the determinations made by the fbi. the jailers don't get to
decide -- >> what about all of the conduct that was not directed by the attorney general? or the fbi. >> yes, your honor. you're referring to the unofficial conditions or the unauthorized abuses by individual guards. >> am i right that as to those the second circuit was unanimous. >> as to those the second circuit was unanimous and they overlooked one critical thing and there were a lot of things wrong and they shouldn't be addressed by the courts and it's not. this is an action for individual damages against mr. hasty for conduct committed by others and in order to establish applausible claim to relief, it would have to show that mr. hasting not only knew that there was misconduct and not only knew that he needed to intervene and after he failed to intervene,
then the plaintiffs were being injured as a result of the failure to intervene, but their injuries were caused by mr. hasty failed to do and what's missing from the second circuit analysis and that's what's missing from the complaint. there's no connection whatsoever between the proposed -- you're in charge of the detention facility and all of these things are going on and your arms are being twrifted and are they having some complaints and nothing is done. it continues to go on. >> the allegation is that he deliberately did not take a routine inspection of of that particular portion of the prison in order to be willfully blind. >> there's no doubt that misconduct occurred and no doubt that mr. hasty actually sees the complaints because that's part of the grievance process, but what's missing from this is these individual plaintiffs are being brought to his attention,
and if you review the complaint it doesn't have a moment where he says this is what he learned and after that we were injured. it's more of a blunder because there are a lot of bad things happening and mr. hasty must be liable. >> how could it be when this is ongoing behavior? >> i think the answer is that you pinpoint his awareness in the injuries that these respondents are claiming damages for. >> you say it in paragraph 74, it says, indeed, after a few months of interacting with the plaintiffs the mdc defendants, i take it those are the people we're talking about, realize that they were not terrorists, that merely immigration detainees, yet the restrictive conditions and harsh treatment continued, so what is that, but an allegation that they did know it and they did continue the
harsh treatment? >> justice breyer, referring specifically to the unofficial abuses by the guard as opposed to the official conditions, temporarily, what's missing there is what happened afterwardses? what were the specific abuses he was aware of? is it misconduct or tapping the bars at night and keeping people awake? >> it is the restrictive conditions and harsh treatment to think they have a list. >> and that's exactly the treatment, and therefore he must be liable for the harsh treatment after that awareness. you cannot say that there are abuses generally with no particular timeframe and hold him liable for every intentional tort that occurs in the institution. i think paragraph 74 and 77 which the second circuit described at details actually illustrate precisely the problem and they don't say which abuse he's aware of whether he predates or post dates what they have and mr. hasty is personally
responsible. in fact, when they finally get to a date which is paragraph 110 of the complaint and february 11, 2002. by february 14, 2002 four of the six respondents are outside of admax. they never explain why awareness after their institution is a basis for holding mr. hasty liable. if i could go back to the official conditions, your honor, with respect to the official conditions, qualified immunity must be granted and there's no basis for saying that every reasonable jailer would understand that they had to make their determination and overturn what the fbi was telling them and it's especially true given that the fbi was throughout this process making determinations and making these people. there's no clearly established law that requires jailers to be making those decisions for the fbi fbi. in fact, society'll be illserved if we asked them to do that.
they are experts in maintaining security. with respect to the scope of bivins, special factors in this case, and council hesitation, congress has to decide what are the consequences of saying that individual jailers, somebody all of the way at the bottom of the food chain must second guess the fbi. what are the consequences for the government's ability to have a coherent response to a national terrorist attack? that is precisely the type of thing that congress rather than the courts should decide. in addition, the lynchpin of the claims against these individuals is that the fbi had gotten these things wrong. that means that they'll prove that the fbi had things wrong. it implicates cases like this implicate the need to add sensitive -- >> so if the initial policy was adopted that we want to beat the prisoners every day and that was the fbi policy, and it's
communicated down, the prison administrator has no choice, but to carry out that policy? >> no, your honor. >> in terms of there being a facially unlawful command is that you don't have qualified immunity and impose the most restrictive permissions admissible until the individual is cleared by the fbi and boy, we all wish the fbi had been acting faster and these individual his been removed more quickly, but that's not at the feet of the individual jailers. their job is to maintain secure conditions and that's what they were doing and with respect to bivins, your honor, the illegality and lawfulness of the conduct challenged isn't the determination of whether or not bivins should be extended to a new context or not. what determines that is whether or not this court has the institutional confidence to make the decision or if it is the sort of decision that congress should make and especially since cases like this one are turning on whether or not the fbi was right or not in its terrorism designations, that implicates
potentially sensitive intelligence information. if that is going to be pulled into a lawsuit, court should not be in the business of creating those lawsuits and creating possible risk for intelligence information and that is precisely the sort of decisions that congress rather than the courts -- >> anything about the hypothetical i gave is a real one, and not this case, but if you cut bivins off totally, what prevents that from recurring? >> you get my point. this case proves exactly what happens. >> ands sometimes there are many, many remedies in the judicial system. >> you have habeas and there was an aftc acclaim brought by predecessors of these plaintiffs which you recovered money on in the settlement and there are remedies that occur and in this case with respect to the individual guards and there was a lawsuit against them and the oig report recommended discipline and discipline was meted out. thank you. >> thank you, counsel.
>> mr. chief justice and may it please the court, under petitioner's theory, any muslim could be placed for months in solitary confinement for violating the immigration law, but this court has a historic role to play in ensuring that race and religion do not take the place of legitimate grounds for suspicion, and in deterring future federal officials from creating government policy to do the same. >> that role includes the shaping and announcement for private damages remedies? we've been very explicit about the restraint in explaining the bivins action beyond its original contours. >> that's correct, mr. chief justice and we don't believe this requires any extension of bivins, whatsoever. when this court heard it fall the court distinguished between
mr. ikball's claim of discrimination which the court assumed would require an extension of bivins and it would be so extended because it was not directly argued before the court, but the court treated differently mr. ikball's claim for an equal protection violation noting that the court had allowed bivins' claims for equal protections under davis. there's no way to read the distinction between those two claims in ikball other than in equal protection claim such as the one that these respondents have arises in a familiar bivins context. the court has in the past allowed prison conditions claims under bivins. there is nothing new here what petitioners -- >> that was to give medical treatment. >> that's correct, and carlson -- >> bivins, the gender
discrimination case and coleman versus miller, i think. >> yes, but we've been very careful in subsequent cases to say we go no further. this is for the congress, i think you're asking us to go further. i think what you're asking for is a legitimate argument with valid points for it, but you're asking for us to create a new bivins cause of action. >> well, if it is a new bivins cause of action i submit that it is an appropriate one here. what the doj petitioners argue is that bivins should not be extended because they were setting national security and immigration approximately see, but t policy, but the core of our complaint is that there was nothing exercised and no one was being vetted and no one was determined to be a threat. this is not a situation where the court would have to look into sensitive national security
determinations that were made, rather, if there was national security judgment exercised, it was the judgment that in this case race or religion could play the part of legitimate suspicion and could play a proxy and exploring. >> i'm not sure i understand your point. it was the implementation of national security policy in response to the 9/11 attacks, and the it was to detain people and every one of the individuals detaf detained was in violation of the immigration status, correct? >> that's correct. >> to detain those individuals until they were properly cleared and could be released. now, you may disagree with that approach to the policy, but what concerns me and why the restraint is appropriate in the bivins context is that it is a way of challenging the national policy through damages actions against the individuals implementing it, and i think
that is an extraordinary departure from what we have recognized bivins' remedies in the past. >> this does arise in the national security context. mitchell v. forsyth arose in a national security context. the question is whether the national security context of these detentions, the type of determinations that were being made are determinations that are unsuited for bivins because either they should be left to congress or they are outside of this court's core competence, and i would submit that this is precisely the kind of examination that is within this court's core competence. >> i guess my point is a different one. i understand the argument that there are constitutional violations, but the question that you're asking the court to do is to shape a remedy for that, a remedy that congress has not provided and to look at it in the simplest terms, it has been 40-whatever years sense we adopted an approach under implied rights of action and
statutes, where if congress wants to bring individual damages actions they pretty much have to say so, and it seems to me that it's the same approach here except, of course, you're dealing with the constitution and the idea that the court lacks the institutional competence, and there is a constitutional claim against the national policy, and we think the best way to consider that constitutional challenge is to allow people to sue individuals responsible for implementing it for damages. you shape the policy, the national government in response to 9/11 and therefore you have to pay money because it's been a determination that that was unconstitutional. >> well, it is certainly true that the court has stepped back from freely implying private causes of action, but in every bivins case that has come before this court, the court has still engaged in the two-step inquiry and looked to see whether there are special factors that should keep the court from its hand and weighed the interests on the other side of the equation, too.
and each time the court has re-emphasized that bivins is about determining federal officer misconduct. when a federal official creates an unconstitutional policy, he's creating policy, but he is also acting as an individual to violate, what in this case would have to be clearly established with constitutional norms. >> the point made by your friend on the other side, though of overdeterrence. when you have the attorney general and the director of the fbi and the director of ins sitting down and making, what are we going to do to respond to this crisis and people in the -- old enough of 9/11 have a better sense of what that crisis was like, and if you imply a bivins actions, one of the things they'll enter and what is best and what is appropriate and what's constitutional, they'll say oh, gosh, if i'm wrong i'm
going to be sued and not because i'm the attorney general, but as an individual, and part of the policy that we've announce side that we don't want people forming policy to have to worry about they're going to have to pay if the policy is found. >> i have two responses to that, mr. chief justice and first of all, qualified immunity creates a powerful protection for federal officials who are undertaking a good-faith effort to protect our national security which everyone agrees is of paramount concern, but who also believe in their actions to be lawful even if they are mistaken. there is already the incredible substantial protection. second, i don't believe that it would be a threat to the republic to provide the attorney general with incentives to not create policy that violates clearly established law. i see the threat coming from the other side. i would like to make sure to take the time to correct --
>> may i ask one other thing, which is has this been fully argued out below? i think it is enormously important and a very open question and we can say, on the one hand, just what was said, everything the chief justice said is true. there is a problem in this time of real national emergency to overdeter people to doinging from they think is necessary and they have the authority for security and not the judges and at the same time the law of this court correctly and there is no blank check even for the president and if there is no blank check sometimes they can go too far and if they have gone too far it is our job to say that. there are considerable advantages, as i pointed out saying, at the time they're going to say yes because there is a big, frightening thing
happening, but maybe they went too far too fast and then this offers a remedy later and maybe the deterrence is good. okay. you see both sides, has that been fully argued in this case? if i go and look in the record can i find a question that i've wondered about for quite a long time fully answered? >> i don't believe so. i think the question you're posing is whether damages would be a less intrusive remedy in this situation than allowing for an injunctive relief claim at the outset, if i understand your question correctly. >> it's in a set of cases. >> yes, no. i don't believe that that has been fully addressed below. the circuit, of course, found no extension of bivins was required so the circuit didn't engage in the analysis of whether an extension is required in this situation would be called for. my friend argued both on reply and from the podium that -- that
even -- that this case cannot be distinguished from ikball, and what is that we -- respondents have a factual allegation that the policy was to target muslims and arabs for harsh treatment and they imposed this treatment knowing there was no reason to suspect respondents of ties to terrorism. my friend argued that even if doj petitioners had known that there was -- had known that many were arrested without an articulable tie to terrorism that the petitioners had reason to believe that some among that group might have potential ties to terrorism. and that explains the harsh treatment without raising an inference of discriminatory intent. but i don't believe that is a fair reading of the complaint or the report. respondents allege in paragraph 47 that petitioners receive
detailed daily reports of the arrests and the detentions and that they learned that the fbi had no basis to suspect respondents and the class of ties to terrorism. there was no reason to think that any of these individuals were -- had an articulate -- there was an articulated basis to suspect them of ties to terrori terrorism. >> we're talking about adequate remedies. can you tell me -- these detainees didn't have access to the outside. were there any legal proceedings filed after, say, month two, month three? and were those remedies completely to that district courts look at this and say we're not going to give relief. >> in general the government's response was to move the detain knee up to the front of the list, to clear him so he could be removed from the county
before a court could have the opportunity to rule on the legality of the detention. and importantly, those hab yous petitions were about the right to detain these people in itself, not about conditions of confinement. it is still not clear today that one can use a hab yous petition to challenge conditions of confinement. and it wasn't clear at the second circuit at the time either. so while hab yous petitions were filed eventually when some detainees finally had access to counsel, although restricted access, those petitions were not ruled on by a court. no court had the opportunity to determine whether what was happening to the detainees was lawful or not. and that was part of doj petitioner's entire policy of harsh treatment. it was not just to impose maximum pressure. it was also as we allege in paragraph 61 to keep the detainees from accessing the
outside world. now, my friend argued that the doj petitioners cannot be on the hook for the substantive due process claim in this case, a claim which was not presented in ikbal. there was no conditions claim in ikbal, just an equal protection claim. because the doj petitioners did not set all the details of the restrictive conditions of confinement, but their order itself, paragraph 61, requires keeping individuals in solitary confinement, in isolation. that is the way within the prison system people are kept from accessing the outside world. it cannot be done in a general population unit. an order that requires solitary confinement for individuals who are arrested in connection to the terrorism investigation, but whom the attorney general ral and the other doj petitioners know there is no
nondiscriminatory reason to suspect of any ties to terrorism, that states the sub stannive due process claim. that is so excessive as to the arbitrary and punitive. this is what the panel found so compelling, i believe, about the merger of the new york list and the national list. it was not a situation where some of the men on the list perhaps hadn't been vetted. rather, the entire list, 300 men, were people for whom the fbi had not stated any interest or lack of interest. and it was this list of men who we allege attorney general ash kroft ordered should be treated of interest to the 9/11 investigation. >> if we hold our previous cases instruct we should not go further with wivens, you still have section 98.5/3. can officials conspire with each other? >> yes, absolutely. >> i was thinking of this cruz case.
is there a precedent on that in your favor? >> yes. what the circuit held as to that is that the question of whether officials can conspire with each other is so fact intensive and had been so inconclusively breached in the district court that it was required to remand back to the district to determine sort of how they might have conspired with each other, whether what their positions were vis-a-vis each other such that a 1985 claim would be appropriate. >> is there precedent in your favor on this point, that there can be this established by the facts. >> yes. i believe the cases cited by the second circuit, by the panel are precedent in our favor for that. >> what is so fact intensive about the argument that government officials, the government is the entity and officials within that same entity don't conspire among themselves? they're just doing their jobs? >> i think it depends on the role of the high levels
officials, vis-a-vis the low level officials at the detention center. certainly we argue that officials at such desperate levels of the federal government, which is vast, could -- could be held to have conspired with each other. but i don't think it is an argument that was fully developed before the district court. and that was what the circuit held and that was why it should be remanded to the circuit and that remands to the district. i want to make sure to address the arguments by the mdc petitioners because, really, their argument about extending -- about not extending bivens for the claims against those officials is very different from the argument by the doj petitioners. every judge who has considered the issue has agreed that the claims that hastey and sherman
were deliberately different to months of physical and verbal abuse arise in a familiar bivens context and should be allowed to go forward. >> karlson versus green? >> yes, exactly. >> the second circuit majority said yes as to hastey, that deliberate indifference, but not as to sherman. >> that's correct. i must have misspoke. i apologize. yes. the deliberate indifference claim goes forward against hastey and then the official confinement at the detention center. these are claims that the men were held in solitary confinement for months, deprived of sleep, deprived of exercise. this is not just the mdc petitioners in following the orders from their superiors in the bureau of prisons. they created the actual conditions of confinement. there is nothing in the record to suggest that the vop ordered
that all of the conditions that respondents were subjected to, lights on in their cells 24 hours a day while they were in solitary confinement, that the solitary confinement continue without any individualized review. there is nothing in the record -- >> were those conditions constitutional as to individuals about whom the fbi had reasonable suspicion of terrorism. >> that would depend. if it is incredibly prolonged and restrictive may be unconstitutional for anybody. >> is your argument dependent on that? the proposition it would be unconstitutional, even as to though with whom the fbi had reasonable suspicion? >> no. that brings up an important point i want to be sure to get out. we disagree with the mdc
petitioners statement that there was a terrorism designation here, that there was a reason to believe that any of the 9/11 detainees had ties to terrorism. there was no designation. what there was is the fact that some men were arrested in connection to the terrorism investigation. >> their position, as i understand it, the way it was presented today was that the fbi had a list and there was no way they could determine what degree of information the fbi had as to any particular person. >> but they were told what information the fbi was relying on. that's in perhaps 70, 71 through their complaint that actually liaison to the headquarters investigation was providing the mdc with information about all the men. >> with all the information? do you think that the fbi in an investigation of something sensitive like this about terrorism would necessarily have
told people at mdc every bit of information they had connecting people with terrorism? >> well, our factual allegation is they were told all the information that was relevant to the threat that the men posed to the institution. and also important here is what the oig has explained about the meaning of the of interest designation. being determined by the fbi to be of interest to the 9/11 investigation meant only that they were not not of interest. this is not just something that was happening in new york. the oig quotes the head of the national security unit of the ins who explains that if the fbi could not state whether or not it had an interest in individual, that individual was held as of interest to the 9/11 investigation. so even if there is word being sent out that, you know, these men are of interest to the investigation, we have to be careful with them, what the mdc petitioners received was that of
interest designation, which meant very little based on the policy being applied here. and then they received the detailed information. for example, that amed kaliffa was encountered by the fbi in the context of the 9/11 investigation, had violated the immigration law and that the fbi might be interested in him. this is the actual information that was provided that we have made available in the complaint. >> the fbi goes into a rooming house after having information there is a nuclear weapon on the floor. they find it. and there might be another. would they be justified in taking into custody every single person in that rooming house and looking into it? i mean, for how long? would you say to them, no, you can't do it because we don't know there are people on the floor. we know nothing about them. all we know is they're in the
rooming house. and we also know there was a nuclear weapon, and that isn't totally fanciful. it could happen. >> we don't challenge the fact that these men were detained at all. and we don't challenge they were investigated while they were detained. even if they had been detained, some of them were up to eight months, which is a long period of time and there is no challenge to that detention in this case. the challenge is to the way they were treated while they were detained, that if you need to investigate after a national security emergency, there are a lot of tools at the government's disposal to do so. what you cannot do is single out a group of people whom you know there is no basis to suspect them of any ties to terrorism beyond sharing racial and religious characteristics with the 9/11 hijackers and to decide that group of people poses such a threat they should be placed in the most restrictive confinement that exists in the
federal system while we take the time, up to eight months, to determine whether there actually is any basis to suspect them of anything other than a violation. at the end of the day, there wasn't. everybody was cleared and deported. as one would expect from a policy that is not based on investigating, based on actual suspicion, but is rather an attempt to gather all of the muslim and arab noncitizens who one has authority over and hold them in restrictive conditions of confinement while they were treated as suspected terrorists. if i could get back for a moment to one of the bivens questions, and that's about whether bivens is appropriate for altering policy. i don't know if i was able to get this point out as well as i'd like to before to explain that i don't think that there is really any precedent for the idea that you can't use bivens
to deter creation of a clearly unconstitutional policy. and if the court did rule in that way, what would there be to deter the creation of unconstitutional policies in the future? now of course policies can be stopped as they are ongoing. but that does not protect the individual amongst whom potential serious law enforcement action has been taken. >> the normal answer would be the normal injuntive action would challenge it which would seem to be a more appropriate way of doing it than individual damages actions against officials responsible. >> but an injuntive claim, while it could stop, currently -- current unconstitutional conduct cannot defer current
unconstitutional conduct from occurring. it does not deter the future attorney general from creating an unconstitutional policy and if national security policy is somehow insulated from judicial review, without even a determination that this is the type of national security policy where we could expect there should be sensitive judgments made, if in that situation there is no bivens remedy, then there are times when the court will be able to play no role in reviewing what has occurred because the individual simply can't get into court fast enough. maybe in a situation like this, they're denied from getting into court for a period of time. and then when they finally do, the claim that the way they have been treated is stopped. they're released. someone else is picked up instead. there is never a chance to actually undertake judicial analysis of what has been occurring.
if qualified immunity justifies what was done here or if petitioners have not plausibly alleged a claim those are bases to affirm the circuit. but if there is no cause of action at all, if individuals who are the subject of clearly unconstitutional national security policy don't even have the opportunity to get into court, then there is nothing to deter even more excessive exercises of government power in the future. if there are no further questions. >> thank you, counsel. general, four minutes. >> thank you, mr. chief justice, a few quick points. first, a few short corrections of the record. i apologize for the confusion about the date. it's not in the complaint the date of the merger decision. the oig report suggests it was on november 2nd. and then justice gins berg, you
had asked about the warden visits, ja page 224 it says on september 20th, 2001, various wardens, including mdc wardens established legal visit, legal telephone calls and legal mail for the september 11th detainees. >> what was the date of that? >> that was september 20th, 2001. that's on page 224 of the joint appendix. three points on the law. first, this would be a massive extension of bevins. justice kennedy you had asked unlike a bevins remedy, injuntive relief has been recognized as the proper relief of doing so. that makes sense. it cannot be that the secretary of treasure could be liable personally to all the banks for the unconstitutional policy. bivens is not lawlessness. it is not a blank check.
and it is incorrect to say that there is no way to get into court. the way to get into court to challenge a policy is through an apa, through injuntive relief. and although my friend on the other side suggests a damages remedy is not a threat to the public or there is a less intrusive remedy, that's exactly the judgment that this court is ill equipped to make and that congress should make. with respect to 1985, i want to make one quick point, which is that the doj defendants would be and all the defendants would be subject to qualified immunity for 1985 because it was not clear that officials within a corporate unit could conspire with each other. there is cause law suggests they couldn't. and it was unclear in the second circuit whether it applied at all to federal officials. so qualified immunity would eliminate the 1985 3 claim. and then if i could close with
the ikbal pleading and what we're talking about here, the other side has made clear they're not talking about the initial treatment and they're not even talking about the length of time. they're talking about the conditions of confinement and conditions that could lawfully be imposed were imposed on a much broader group. but that ignores the fact that the attorney general, assuming he was the person that made the policy decision, which has judge suggested we should not assume. >> just one point on 1985, the fact it wasn't career there was a remedy under 1985, it wasn't clear there wasn't a right that was being violated. that's different. >> with respect to the interagency conspiracy, i think that suggests even the right wasn't acquired. and it's not clear the statute applies at all to them. we do think that's a situation in which qualified immunity would attach. to close with what the attorney general knew. he knew he had aliens detained
and had been arrested, that restrictive conditions of confinement, not the unofficial conditions which have no connection to my clients, but the restrictive conditions were okay for some with individualized suspicion, but he had no way to know which ones were and were not subject to that condition. he made the decision to subject the whole group to a hold until clear policy until they could figure it out. the idea that in 20/20 hindsight we could identify the particular individuals who were not connected at all to terrorism and thus were wrongly detained does not change the reasonableness of his judgment, the fact that you can't infer punitive intent and discriminatory intent and the fact there was not clearly established that the list merger decision, which is a core of what the second circuit decided what it was unconstitutional when made. if there were no further questions. >> thank you, counsel.
general, before you leave the podium, i'd like to note that the court thanks you for your service to the court as acting solicitor general over the past many months. >> thank you. the case is submitted. >> for more on the supreme court, head to c spon.org, where we have a website devoted to our coverage of the highest federal court. there is also featured biographies of all the supreme court justices and audio of other oral arguments heard by the court. >> this weekend on c-span 3, start at 6:00 p.m. eastern on the civil war, the disbanding of the con federal army of northern virginia is discussed by carolyn janney. >> these terms had said nothing
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at high interest rates in our day and age. >> and at 6:30, president reagan's speech writer and former u.s. ambassador to germany recall reagan's 1987 trip to berlin and the speech. >> i know it was authentic ronald reagan. but, you know, history, as president obama says, has an ark. of course we would never celebrate that famous speech if in fact the events of 1989 had not transpired the way they did. >> for our complete american history tv schedule, go to cspan.org. >> next, transportation secretary elaine chow testifies on the president's 2018 budget request and other priorities for her department. she faced questions